A.C. Upadhyay, J.;— 1. Present appeal arises out of judgment and order dated 2.4.2009 passed by the learned District and Sessions Judge, Lakhimpur in Sessions Case No. 10(N.L.)/2007, whereby the appellant was convicted under section 302, IPC and sentenced to undergo imprisonment for life and also to pay a fine of Rs.3,000, in default, to undergo rigorous imprisonment for another 3 months. 2. Brief facts giving rise to this appeal reveals that at about 9:00 p.m. in the evening on 10.12.2004, an FIR was lodged by Sri Ramen Das, son of Late Aditya Das (deceased) stating therein that on 10.12.2004 at about 8.00 a.m. Sri Bogen Chutia, Tiken Chutia, Biren Chutia and Rupen Chutia had severely assaulted and injured him and his father Aditya Das by means of sharp weapons in latters own field. As a result of the injuries, both of them were taken to North Lakhimpur Civil Hospital, for treatment. Unfortunately, on the same day at about 5:00 p.m. injured Aditya Das, succumbed to his injuries at North Lakhimpur Civil Hospital. On the basis of the FIR so lodged by PW1, a case was registered under section 324/302/34, IPC and accordingly investigation was launched. 3. On completion of the investigation, a charge sheet was submitted against the accused Bhogen Chutia and Tiken Chutia. On submission of the charge sheet, the learned Judl. Magistrate, 1st Class at North Lakhimpur, finding the offences alleged against the accused, exclusively triable by the Court of Sessions, committed the case to the learned Court of Sessions at Lakhimpur, Assam, for trial. 4. During trial, charges were framed by the learned Sessions Judge, North Lakhimpur against the accused above named, for commission of offence under sections 324/302/34, IPC. 5. On conclusion of trial, the learned Sessions Judge considering the evidence adduced by the prosecution as well as the relevant materials on.record, acquitted the co-accused Bhogen Chutia from the charges aforesaid levelled against him. However, the learned Sessions Judge held that the prosecution was successful in proving the charges against the accused Tiken Chutia, for committing offence under section 302, IPC and accordingly convicted the accused appellant under section 302, IPC and sentenced him as aforesaid, giving rise to this appeal. 6. We have heard Mr. A. Khanikar, learned counsel for the appellant and Mr. Z. Kamar, learned public prosecutor for the State of Assam. 7. Mr. 6. We have heard Mr. A. Khanikar, learned counsel for the appellant and Mr. Z. Kamar, learned public prosecutor for the State of Assam. 7. Mr. A. Khanikar, learned counsel appearing on behalf of the appellants has taken us through the evidence of the eye witnesses and other prosecution witnesses, namely, Ramen Das (PW1), Makha Saikia (PW2), Nizara Das (PW3), Rongmon Das (PW4), Dr. Rana Dutta (PW5) as well as the deposition of defence witness Probhat Sonowal (DW1). Learned counsel for the appellants submitted that the occurrence of the incident is not denied by the defence, but the occurrence took place, when both Tiken and Bhogen were ploughing the land belonging to appellants. 8. Learned counsel for the appellant by referring to the defence stand vis-a-vis the evidence of the defence witness of DW1, submitted that at the time of occurrence around 18/19 people including Aditya, Ramen, Puspa, Kanti, Bapan, Makhan, Tarun, Purnananda, Nipen and others all armed with spear, fishing prongs, etc., arrived at the place of occurrence and prevented the accused from ploughing their land. Immediately, thereafter the aforesaid persons, who were witnesses in this case started assaulting the accused. Both the convicted accused Tiken and Bhogen sustained severe injuries on their person. They were both taken to the Hospital and hospitalized for number of days for treatment of the injuries sustained by them. The accused Tiken had to remain in hospital for about 14 days and his elder brother Bhogen was hospitalized for 16 to 17 days for treatment of injuries sustained in the incident. Learned counsel for the appellant submits that the first informant and the deceased suddenly tried to grab the land belonging to the accused, which is the root cause of the incident. Learned counsel for the appellants referring to the statement made by the accused in his defence statement made under section 313, Cr.PC submitted that the deceased did not try to assault, nevertheless, while trying to prevent his own people from assaulting the appellants, the deceased had received 'dao' blows launched by someone from his own group, which caused the fatal injuries on his person. 9. Learned counsel for the appellant further submits that since the prosecution did not come forward to explain the injuries sustained by the accused/appellant in the occurrence. 9. Learned counsel for the appellant further submits that since the prosecution did not come forward to explain the injuries sustained by the accused/appellant in the occurrence. In support of his contention, learned counsel for the appellant relied on the decisions of the Supreme Court in Lakshmi Singh and Ors, v. State of Bihar, (1976) 4 SCC 394 and Kuldip Yadau and Ors v. State of Bihar, AIR 2011 SC 1736 . According to the learned counsel for the appellant, the accused/appellant committed the offence in private defence. 10. In reply to the above contention, Mr. Z. Kamar, learned Public Prosecutor, Assam, submits that the prosecution has been able to establish the offence alleged against the accused/appellant beyond all reasonable doubt and the conviction and sentence recorded by the learned Trial Court do not call for interference by this court. 11. In order to appreciate the rival contentions advanced by the parties, we would like to extract the core of the evidence on record. Out of 7 witnesses examined by the prosecution, PW1 and PW4 are non-official witnesses and PW5 and PW6 are official witnesses and PW7 is the Medical Officer, who carried out the post mortem examination of the deceased. 12. The accused-appellant during his statement under section 313 Cr.PC took the stand that at the time of occurrence the accused/appellant along with his brother was ploughing in their own field and deceased Aditya Das, along with his sons, namely, Ramen, Puspa, Bapkon, Kanti and Makhana accompanied by some other persons armed with daos, lathis, etc., had beaten them, for which both of them had sustained injuries. It is in evidence that the co-accused Bogen Chutia (since acquitted) remained as indoor patient in the hospital, for sustaining fracture injuries on his right leg. In order to establish that the complainant had attacked the accused/appellant, one defence witness was also examined. 13. PW1, Ramen Das, who is the son of the deceased, deposed that on the date of occurrence, after sunrise, he along with Puspa, Bapkon, Kanti and Makhana had gone to plough their land by taking ploughs and cattle with them, where they found there the accused Tiken and Bogen ploughing in their paddy field. In the meanwhile, Aditya Das (deceased) arrived at the place of occurrence and approached the accused/appellant and requested them not to plough their paddy field. In the meanwhile, Aditya Das (deceased) arrived at the place of occurrence and approached the accused/appellant and requested them not to plough their paddy field. But instead, both the accused persons 'gheraoed' Aditya Das and thereafter accused/appellant inflicted a 'dao'blow on the head of Aditya Das. On sustaining injuries, Aditya Das fell down in the ground. When, PW1 rushed towards his father he saw daos, lathies, etc., kept scattered in the filed. When PW1 tried to resist them, two persons, namely, Rupen Chutia and Biren Chutia came out from the dense forest. One of them assaulted PW1 by means of 'dao' over his left hand and other man hit him on his right hand and after having injured PW1, both of them fled away. In his cross-examination, PW1 admitted that the accused persons also filed a cross-case alleging assault and injury by the complainant, wherein, PW1 and others were arrayed as accused persons. Admittedly, PW1 and others, who were arrayed as accused in the FIR, were found guilty of committing offence under section 143/147/148/323/325 in G.R. Case No. 1292/04. 14. PW2, Makhan Saikia is not the eye witness of the occurrence. PW3, Smt. Nizara Das, reached the place of occurrence hearing 'hulla' and found her father Aditya Das lying in injured condition in the courtyard of Dandi Das. She came to know from her father that he was injured by the accused/appellant, Tiken Chutia. From the evidence of witnesses, it transpires that except PW1, Ramen Das, the other witnesses had not seen the occurrence. 15. The Medical Officer, PW5, Dr. Rana Dutta, who performed the autopsy on the dead body of the deceased, Aditya Das at Civil Hospital, North Lakhimpur, found bandage on the head of the victim and on removing the bandage PW5 found a stitch would of the size 6" on the middle of the head of the deceased. During dissection, the medical witness found a cut fracture of the skull of about 8" in length which was located on the middle of the head of the victim. According to PW5, the injury was ante-mortem in nature and sufficient in the ordinary course of nature, to cause death of the deceased. PW5 opined that the deceased died due to shock and haemorrhage as a result of the head injury sustained by him. 16. PW7, Dr. According to PW5, the injury was ante-mortem in nature and sufficient in the ordinary course of nature, to cause death of the deceased. PW5 opined that the deceased died due to shock and haemorrhage as a result of the head injury sustained by him. 16. PW7, Dr. Giasuddin Ahmed, who examined injured victim Ramen Das (PW1) found one incised wound over the ball of the left thumb of size 3 x 2 x ½ cm. The medical witness opined that the injury was simple injury in nature, however, caused by sharp weapon. 17. From the evidence of witnesses, it is apparent that the deceased was injured by the appellant Tiken Chutia fatally on the head by means of 'dao', which caused death of the deceased. The accused appellant had taken the plea that just about the time of occurrence he along with his brother were ploughing in their paddy field and, the informant along with others were the aggressors who had attacked them with doas, lathies, etc., as a result of which both of them sustained injuries. 18. DW1, Prabhat Sonowal, who was examined as defence witness, deposed that he was present near the place of occurrence, wherefrom he could see that the accused persons were ploughing in the field and meanwhile 15/20 persons came there armed with daos, lathies, etc., and had beaten both the accused. Seeing this he hid himself in the jungle and saw an old man falling down on the ground. Later on, the old man was taken away by his companions from the place of occurrence subsequently, he came to know that the said old man died in hospital. 19. Apparently, from the evidence of DW1, it cannot be discerned that Aditya had sustained injuries in the hands of his own men, as sought to be established by the defence. Even if it is accepted that the accused/appellant had used right of private defence of his person and property, then also he exceeded the right of private defence since the gravity of the assault coupled with brutality of the attack and the place of the body chosen made it imminently reflects the evil design of the accused to kill. Even if it is accepted that the accused/appellant had used right of private defence of his person and property, then also he exceeded the right of private defence since the gravity of the assault coupled with brutality of the attack and the place of the body chosen made it imminently reflects the evil design of the accused to kill. Though single blow was made on the head of the deceased, but the nature of the injury which caused fracture of the skull of the deceased as described by the doctor, the size of the injury caused clearly reflects that it was sufficient to cause death of the deceased in ordinary course of nature. The injury was caused so violently that almost 8" of the skull was fractured. This is enough to assess the intention of the accused appellant to kill the deceased, who admittedly came to pacify the situation. 20. Admittedly, Aditya Das (deceased) was not armed and did not attempt to assault the accused/appellant. It is an accepted proposition of law that right of private defence of life and property cannot be exercised against an un-armed person. Therefore, in the light of the evidence on record, we have no hesitation to hold that the appellant was in-fact aggressor and, thus, he cannot claim the right of private defence against the deceased, who was killed in the incident. A right to defence himself does not include a right to launch offensive weapon against an unarmed gentleman, who had admittedly volunteered to pacify every one. In our opinion, the appellant has failed to establish that the crime was committed by him exercise his right to private defence. 21. Another question which came up for consideration is to what is the effect of non-explanation of injuries sustained by the appellant at the time of occurrence. It cannot be accepted as a unqualified proposition of law that whenever accused sustained injuries in the same occurrence, the prosecution is obliged to explain the injuries an3 failure to do so, the prosecution case is to be disbelieved. 22. In the case of Takhaji Hiraji v. Thakore Kubersing Chamansing and Ors., (2001) 6 SCC 145 , question which arose for consideration is what is the effect of non-explanation of injuries sustained by the accused persons. 22. In the case of Takhaji Hiraji v. Thakore Kubersing Chamansing and Ors., (2001) 6 SCC 145 , question which arose for consideration is what is the effect of non-explanation of injuries sustained by the accused persons. The Apex Court observed that in Rajender Singh v. State of Bihar, (2000) 4 SCC 298 : Ram Sunder Yadav v. State of Bihar, (1998) 7 SCC 365 and Vijayee Singh v. State of U.P., (1990) 3 SCC 190 , all three-Judge Bench decisions, the view taken consistently is that it cannot be held as a matter of law or invariably a rule that whenever the accused sustained an injury in the same occurrence, the prosecution is obliged to explain the injury and on the failure of the prosecution to do so the prosecution case should be disbelieved. Before non-explanation of the injuries on the persons of the accused persons by the prosecution witnesses may affect the prosecution case, the court has to be satisfied of the existence of two conditions: (i) that the injury on the person of the accused was of a serious nature; and (ii) that such injuries must have been caused at the time of the occurrence in question. Non-explanation of injuries assumes greater significance when the evidence consists of interested or partisan witnesses or where the defence gives a version which competes in probability with that of the prosecution. Where the evidence is clear, cogent and creditworthy and where the court can distinguish the truth from falsehood the mere fact that the injuries on the side of the accused persons are not explained by the prosecution cannot by itself be a sole basis to reject the testimony of the prosecution witnesses and consequently the whole of the prosecution case. 23. In Amarjit Singh v. State of Haryana, (2009) 16 SCC 649 , the Apex Court observed that it is true, as contended by the learned State counsel, that every injury is not liable to be explained when the accused pleads a defence but contrarily an obligation does lie on the prosecution to explain the presence of a serious injury. The Apex Court also observed that as held by this court in State of Gujarat v. Bai Fatima (1975) 2 SCC 7 : 1975 SCC (Crl.) 384, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. The Apex Court also observed that as held by this court in State of Gujarat v. Bai Fatima (1975) 2 SCC 7 : 1975 SCC (Crl.) 384, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. 24. The present, however, is certainly such a case, therefore, the minor injury sustained by the accused appellant, who admittedly was present at the place occurrence is of no significance. Therefore, the ratio of the decision in Lakshmi Singh and Ors. v. State of Bihar, (1976) 4 SCC 394 and Kuldip Yadav and Ors. v. State of Bihar, AIR 2011 SC 1736 , would not have application in the present case. 25. In the instant case the accused appellant did not sustain severe injuries on his person; the injuries sustained by him are simple and superficial in nature. Therefore, having regard to the nature of injuries alleged to have been sustained by the appellant, the prosecution case cannot be overthrown and rejected, for non-explanation of the minor injuries sustained by the accused. The evidence made by the witnesses against the appellant for having committed the offence alleged has been found to be cogent and reliable. In our opinion, the prosecution evidence outweighs the effect of omission on the part of the prosecution to explain the injuries. 26. Learned counsel for the appellant would submit that there was no premeditation to kill the victim. In (2006) 4 SCC 652 : Smt. Sandhya Jadhav v. State of Maharashtra. The hon'ble Supreme Court in paras 6, 7 and 8 in Sandhya Jadhav (supra) observed as follows : - "6. Learned counsel for the appellant submitted that even if the accusation of the prosecution are accepted in toto a case under section 302, IPC is not made out, in view of the categorical findings recorded by the trial court and the High Court that the assaults we're made in course of a quarrel and conviction should not have been done in terms of section 302, IPC. According to him Exception 4 to section 300, IPC is applicable 7. In reply, learned counsel for the State submitted that looking at the factual scenario as projected by the prosecution witnesses and the nature of the injury inflicted, the trial court was justified in recording conviction under section 302, IPC and the High Court has rightly dismissed the appeal. 8. For bringing in operation of Exception 4 to section 300, IPC, it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner." 27. As rightly pointed out by the learned counsel for the appellant from the evidence of the eye witnesses to the occurrence, it is easily discernible that the appellant made a single assault by means after a sudden quarrel relating to possession of cultivation field. Apparently, there was no premeditation to cause death of the deceased and the accused-appellant did not act in a cruel or unusual manner in assaulting the deceased. Undoubtedly, injury had been caused on the vital part of the body of the deceased, but it must also be borne in mind that when a person is deprived of his mind and emotion he may act violently and that by itself may not be a ground to be considered against him, while determining the nature of the offence. Each case is to be considered on its own merit. However, taking a holistic view of the matter, in such a incident, foe entire attending circumstances, must be taken into consideration in order to find out the nature of the actual offence committed. It cannot be inferred that the appellant caused the death by doing an act with the intention of causing death, it can at best be contingent effect of the act which was done with the knowledge that it was likely to cause death, but without any intention to cause death or to cause such bodily injury as was likely to cause death. From the sequence of events and attending circumstances coupled with the nature of the guilt, the accused-appellant, it appears to us that the accused appellant did not have necessary intention to kill the deceased. From the sequence of events and attending circumstances coupled with the nature of the guilt, the accused-appellant, it appears to us that the accused appellant did not have necessary intention to kill the deceased. However, he had the knowledge that the assault made by him may cause the death of the deceased. 28. For the foregoing reasons the appeal is partly allowed and the conviction of the accused-appellant under section 302, IPC is altered to one under section 304 Part II of the Indian Penal Code. Consequently the sentence of life imprisonment and fine awarded to the appellant is set aside. The appellant is now sentenced to suffer rigorous imprisonment of seven years, for the altered conviction. Send down the LCR forthwith. _____________